Driedger’s “Modern Principle”
at the Supreme Court of Canada:
Interpretation, Justification,
Legitimization
Stéphane BEAULAC* and Pierre-André CÔTÉ**
AbstractIn the last 20 years, Elmer Driedger’s “modern principle” has emerged as THE expression of the Supreme Court of Canada’s pre-ferred approach to statutory inter-pretation. The authors examine this fundamental development in Cana-dian law, including the variable rela-tions between Driedger’s quote and the Court’s use of it, the different circumstances in which the princi-ple is invoked and its influence on the caselaw of other superior courts in the country.
Follows an appraisal of the impact of the “modern principle” on Canadian law. The principle is shown to serve three clearly different func-tions. It is used in the interpretation of statutes, it provides judges with a justification framework for interpre-tive decisions, and it is also instru-mental in the legitimization of the
* Associate Professor, Faculty of Law, University of Montreal. The competent research assistance of Ms. Attieha Rebecca Chamaa is acknowledged. ** Emeritus Professor, Faculty of Law, University of Montreal.
Résumé
Depuis les 20 dernières années, le « principe moderne » d’interpré-tation législative énoncé par Elmer Dreidger s’est imposé comme LA référence en la matière à la Cour suprême du Canada. Les auteurs décrivent cette évolution fondamen-tale du droit canadien, s’arrêtant notamment aux relations variables entre le texte de Driedger et l’usage que la Cour en a fait, aux différentes circonstances dans lesquelles le principe est invoqué ainsi qu’à l’in-fluence que le principe a pu avoir sur la jurisprudence des autres tri-bunaux supérieurs au pays.
Suit une évaluation de l’impact du « principe moderne » en droit ca-nadien. Les auteurs distinguent trois fonctions du principe. Il se présente comme une méthode d’interpréta-tion ; il propose un cadre pour gui-der les juges dans la justification
judicial function in statutory inter-pretation.
No doubt, the “modern principle” has brought about some advances in the law relating to statutory inter-pretation in Canada. However, the author reckon that it constitutes an over-simplified reflection of the ac-tual practice of Canadian jurists, in-cluding judges. As a result, Driedger’s principle provides neither a valid method for interpreting statutes nor a suitable structure for the courts’ justification of interpretive decisions. One should not see in it more than a good starting point for statutory in-terpretation.
des décisions relatives à l’interpré-tation ; il contribue à la légitimation des décisions judiciaires en matière d’interprétation législative.
Certes, le « principe moderne » a fa-vorisé certains progrès dans le droit relatif à l’interprétation législative au Canada. Toutefois, les auteurs estiment qu’il s’agit d’une simpli-fication exagérée de la démarche effectivement suivie par les juristes canadiens, y compris les juges. Par-tant, le principe de Driedger ne peut ni constituer une méthode adéquate d’interprétation des lois, ni offrir aux juges un cadre satisfaisant pour la justification de leurs décisions en matière d’interprétation. Tout au plus peut on y voir un point de départ valable pour toute démarche d’inter-prétation.
Table of Contents
Introduction
... 135I.
The “Modern Principle” Reconsidered
and Exposed
... 141A. A Fresh Look at Driedger’s Construction of Statutes ... 141
B. A Survey of the Supreme Court of Canada Case Law ... 144
II. The Legacy of the “Modern Principle”
in Canada
... 153A. The Functions of the “Modern Principle” ... 154
1. Driedger Meant Meaning-Selection or Meaning-Justification?... 156
2. Using Driedger More for Meaning-Selection or Meaning-Justification?... 157
3. Legitimizing Interpretation with the “Modern Principle” ... 159
B. The Impact of the “Modern Principle” ... 162
1. Form... 162
2. Substance... 164
If professor Elmer Driedger of the Faculty of Law (common law), University of Ottawa, had been asked whether he expected his remarks on the “modern principle” of statutory interpretation to have any effect on the judiciary in Canada, he would have most likely remained humble, knowing perhaps better than anybody that no one may predict the ways of courts. There is a further question, probably more scholarly interesting and in any event surely less speculative, which is whether the popularity of the citation has been won at the price of the integrity of the author’s thoughts. If it has, it would certainly not be the first (nor the last) time. Was it not Karl Marx who once said: “All I know is I’m not a Marxist”1?
In the recent history of the Supreme Court of Canada, where a consensus on legal issues or on an approach to addressing them is anything but frequent, one exception is the “modern principle” of statutory interpretation. This celebrated doctrinal contribution comes from Driedger’s Construction of Statutes2, usually cited from the sec-ond edition of the book, which reads:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordi-nary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.3
A thorough search with the engine available on the website4 of the Supreme Court of Canada reveals that, not only has this excerpt been referred to often, but it appears to be the most popular author’s citation ever5. Indeed, from its very first use in 1984, with Stubart Investments Ltd. v. The Queen6, up to the end of our studied period
1 Karl Marx as quoted by Friedrich Engels in a letter dated 5 August 1890 to
Conrad Schmidt.
2 Elmer A. DRIEDGER, The Construction of Statutes, Toronto, Butterworths,
1974, at 67.
3 Elmer A. DRIEDGER, The Construction of Statutes, 2nd ed., Toronto,
Butter-worths, 1983, at 87.
4 See [http://www.lexum.umontreal.ca/csc-scc/].
5 Especially in the last few years at the Supreme Court of Canada, that quote has
become something of an incantation that is uttered before proceeding with the actual process of interpreting legislation.
on 1 January 2006 (more than twenty years later), there were no less than 59 decisions by the Supreme Court of Canada7 making
refer-7 Beside the Stubart decision, the other 58 are: Vachon v. Canada (Employment
and Immigration Commission), [1985] 2 S.C.R. 417; Canadian National v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; Symes v. Canada, [1993] 4 S.C.R.
695; Canada v. Antosko, [1994] 2 S.C.R. 312; Québec (Communauté urbaine) v.
Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3; R. v. McIntosh, [1995] 1
S.C.R. 686; Friesen v. Canada, [1995] 3 S.C.R. 103; Schwartz v. Canada, [1996] 1 S.C.R. 254; Alberta (Treasury Branches) v. M.N.R., [1996] 1 S.C.R. 963; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; 2747-3174 Québec Inc. v.
Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919 (hereinafter “Régie des permis d’alcool”); Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1
S.C.R. 411; R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Rizzo & Rizzo Shoes Ltd.
(Re), [1998] 1 S.C.R. 27 (hereinafter “Rizzo Shoes”); R. v. Gladue, [1999] 1 S.C.R.
688; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Best v. Best, [1999] 2 S.C.R. 868; Winters v. Legal Services Society, [1999] 3 S.C.R. 160; Francis v. Baker, [1999] 3 S.C.R. 250; R. v. Davis, [1999] 3 S.C.R. 759; 65302 British Colombia Ltd. v. Canada, [1999] 3 S.C.R. 804; Will-Kare
Pav-ing & ContractPav-ing Ltd. v. Canada, [2000] 1 S.C.R. 915; R. v. Araujo, [2000] 2
S.C.R. 992; R. v. Sharpe, [2001] 1 S.C.R. 45; R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; Ludco Enterprises Ltd. v. Canada, [2001] 2 S.C.R. 1082; Law
Soci-ety of British Columbia v. Mangat, [2001] 3 S.C.R. 113; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; Sarvanis v. Canada, [2002]
1 S.C.R. 921; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 (hereinafter “Bell ExpressVu”); Lavigne v. Canada (Commissioner of Official
Lan-guages), [2002] 2 S.C.R. 773; Macdonell v. Québec (Commission d’accès à l’infor-mation), [2002] 3 S.C.R. 661; R. v. Jarvis, [2002] 3 S.C.R. 757; Harvard College
v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45 (hereinafter “Harvard
College”); Markevich v. Canada, [2003] 1 S.C.R. 94; Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476; C.U.P.E. v. Ontario (Min-ister of Labour), [2003] 1 S.C.R. 539; Parry Sound (District) S.S.A.B. v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157; R. v. Blais, [2003] 2 S.C.R. 236; R. v. Clay, [2003]
3 S.C.R. 735; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary
(City), [2004] 1 S.C.R. 485; Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727; Application under s. 83.28 of the Crim-inal Code (Re), [2004] 2 S.C.R. 248; Mosanto Canada Inc. v. Ontario (Superin-tendent of Financial Services), [2004] 3 S.C.R. 152; Épiciers Unis Métro-Richelieu Inc., division “Éconogros” v. Collin, [2004] 3 S.C.R. 257; R. v. Clark, [2005] 1
S.C.R. 6; Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47; Bristol-Myers Squibb
Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401; Canada (House of Commons) v. Vaid, [2005] 1
S.C.R. 667; Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539; Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; Merk v. International Association of Bridge, Structural, Ornamental and
Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425; Charlebois v. Saint John (City), [2005] 3 S.C.R. 563; R. v. C.D., , [2005] 3 S.C.R. 668; Castillo v. Cas-tillo, 2005 SCC 83.
ences to Driedger’s words8; three other cases9 cited the third edi-tion, Driedger on the Construction of Statutes10, by professor Ruth Sullivan, where the “modern principle” became the “modern rule” of statutory interpretation and was, in effect, recast in different terms11. What is also worth emphasising is how Driedger’s quote is used in all areas of the law and, in fact, in all facets of legal interpretation: from tax law12 to human rights law13, from criminal law14 to family law15, as well as to qualify legislation in constitutional challenges
8 These cases referred to the relevant passage more often in a unanimous or
majority set of reasons, although some references are in minority or dissenting opinions only; there are instances where more than one set of reasons quote Driedger. Finally, it is worth mentioning that in the large majority of cases, the Supreme Court judges actually used an excerpt of the whole or part of the pas-sage in question; only a few times did they refer to the author without quoting him.
9 See: Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415; Pointe-Claire (City)
v. Quebec (Labour Court), [1997] 1 S.C.R. 1015; Opetchesaht Indian Band v.
Canada, [1997] 2 S.C.R. 119. In addition to these three cases, there were other
instances where both the second and the third editions of the work were referred to, some with quotes some without: Verdun v. Toronto-Dominion Bank, supra, note 7; Régie des permis d’alcool, supra, note 7; R. v. Gladue, supra, note 7;
Winko v. British Columbia (Forensic Psychiatric Institute), supra, note 7; Best v. Best, supra, note 7; 65302 British Colombia Ltd. v. Canada, supra, note 7; Chieu
v. Canada (Minister of Citizenship and Immigration), supra, note 7.
10 Ruth SULLIVAN, Driedger on the Construction of Statutes, 3rd ed., Toronto &
Vancouver, Butterworths, 1994, at 131 and 132.
11 See infra, note 156. For a defence and explanation of her reformulation, see:
Ruth SULLIVAN, “Statutory Interpretation in the Supreme Court of Canada”, (1998-1999) 30 Ottawa L. Rev. 175.
12 See Stubart, supra, note 6; Symes v. Canada, supra, note 7; Canada v. Antosko,
supra, note 7; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, supra, note 7; Friesen v. Canada, supra, note 7; Schwartz v. Canada, supra,
note 7; Alberta (Treasury Branches) v. M.N.R., supra, note 7; Royal Bank of Canada v. Sparrow Electric Corp., supra, note 7; 65302 British Colombia Ltd. v. Canada,
supra, note 7; Will-Kare Paving & Contracting Ltd. v. Canada, supra, note 7; Ludco Enterprises Ltd. v. Canada, supra, note 7; R. v. Jarvis, supra, note 7; Markevich
v. Canada, supra, note 7.
13 See: Canadian National v. Canada (Human Rights Commission), supra, note 7;
Canada (House of Commons) v. Vaid, supra, note 7, para. 80, where Binnie J. for
the Court even wrote: “Such interpretative principles apply with special force in the application of human rights laws” [emphasis added].
14 See: R. v. McIntosh, supra, note 7; R. v. Gladue, supra, note 7; R. v. Davis, supra,
note 7; R. v. Araujo, supra, note 7; R. v. Clark, supra, note 7; R. v. C.D., supra, note 7.
(Charter16 cases17 or division of powers cases18), to interpret con-stitutional19 or quasi-constitutional texts20, to construe delegated legislation like regulations21 and by-laws,22 to interpret transitional provisions in an enactment23; it was extended to Quebec civil law24
16 Canadian Charter of Rights and Freedoms, in Part I of the Constitution Act, 1982,
being Schedule B of the Canada Act 1982, (U.K.) 1982, c. 11 (hereinafter
“Char-ter”).
17 See: Winko v. British Columbia (Forensic Psychiatric Institute), supra, note 7; R.
v. Sharpe, supra, note 7; R. v. Clay, supra, note 7; Application under s. 83.28 of
the Criminal Code (Re), supra, note 7.
18 See: R. v. Hydro-Québec, supra, note 7; Law Society of British Columbia v.
Man-gat, supra, note 7.
19 See: R. v. Blais, supra, note 7, where at issue was the Manitoba Natural Resources
Transfer Agreement, which is incorporated as Schedule 1 to the Constitution Act, 1930, reprinted in R.S.C. 1985, App. II, No. 26. At para. 16, the Court wrote:
“The starting point in this endeavour is that a statute – and this includes stat-utes of constitutional force – must be interpreted in accordance with the mean-ing of its words, considered in context and with a view to the purpose they were intended to serve: see E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87”.
20 See: Lavigne v. Canada (Commissioner of Official Languages), supra, note 7,
para. 25, where Gonthier J. wrote for the Court: “The Official Languages Act and the Privacy Act are closely linked to the values and rights set out in the Consti-tution, and this explains the quasi-constitutional status that this Court has recognized to them as having. However, that status does not operate to alter the traditional approach to the interpretation of legislation, defined by E.A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87”. See also: Charlebois v. Saint
John (City), supra, note 7, dealing with the New Brunswick Official Languages Act, S.N.B. 2002, c. O-0.5.
21 See: Bristol-Myers Squibb Co. v. Canada (Attorney General), supra, note 7, on the
interpretation of patent regulations.
22 See: Montréal (City) v. 2952-1366 Québec Inc., supra, note 7, on the
interpreta-tion of a municipal by-law.
23 See: Medovarski v. Canada (Minister of Citizenship and Immigration), supra, note
7; as regards the applicability of the “modern principle” to transitional provi-sions, see para. 14 and 15.
24 See: Épiciers Unis Métro-Richelieu Inc., division “Éconogros” v. Collin, supra,
note 7, para. 21, where LeBel J. for the Court wrote: “However, this distinction between the approaches to interpreting civil law and statute law has become blurred as methods for interpreting legislation have evolved. The distinction is practically non-existent today, as statute law is no longer automatically given a narrow reading. This Court has discussed its preferred approach to interpreting legislation on numerous occasions”. He then refers to the “modern approach” and to case law citing Driedger.
in order to construe Civil Code25 provisions and even once to help interpret a contract26. Professions of faith over the years vis-à-vis the “modern principle” include that it is the “prevailing and pre-ferred”27 or the “established”28 approach, that it is the “appropriate and proper”29 or the “traditional and correct”30 approach; Driedger’s words would indeed be a “definitive formulation”31 which “best cap-tures or encapsulates”32 the approach, even the “starting point”33 for statutory interpretation in Canada.
When extending the search to the country’s other superior courts, one finds unequivocal confirmation of the extraordinary influence of the writings. The grand total of references to Driedger’s “modern principle” up to mid-2005, in federal courts and in supe-rior courts of the provinces and territories – whatever edition of The Construction of Statutes and be it a direct quote, a reference to the passage, or an indirect endorsement via a Supreme Court of Canada
25 Civil Code of Québec, S.Q. 1991, c. 64.
26 See: Manulife Bank of Canada v. Conlin, supra, note 9, para. 41, per
L’Heureux-Dubé J. (dissent), where she wrote, before referring to the third edition of
Driedger on the Construction of Statutes, op. cit., note 10: “Therefore, the
‘mod-ern contextual approach’ for statutory interpretation, with appropriate adapta-tions, is equally applicable to contractual interpretation”.
27 See: Chieu v. Canada (Minister of Citizenship and Immigration), supra, note 7,
para. 27; Sarvanis v. Canada, supra, note 7, para. 24; Bell ExpressVu, supra, note 7, para. 26; Alberta Union of Provincial Employees v. Lethbridge Community
College, supra, note 7, para. 25; Application under s. 83.28 of the Criminal Code (Re), supra, note 7, para. 34; Épiciers Unis Métro-Richelieu Inc., division “Écono-gros” v. Collin, supra, note 7, para. 21; Marche v. Halifax Insurance Co., supra,
note 7, para. 54; Bristol-Myers Squibb Co. v. Canada (Attorney General), supra, note 7, para. 96; H.L. v. Canada (Attorney General), supra, note 7, para. 186.
28 See: Mosanto Canada Inc. v. Ontario (Superintendent of Financial Services), supra,
note 7, para. 19.
29 See: C.U.P.E. v. Ontario (Minister of Labour), supra, note 7, para. 106; Parry
Sound (District) S.S.A.B. v. O.P.S.E.U., Local 324, supra, note 7, para. 41.
30 See: Lavigne v. Canada (Commissioner of Official Languages), supra, note 7,
para. 25; 65302 British Colombia Ltd. v. Canada, supra, note 7, para. 5.
31 See: Bell ExpressVu, supra, note 7, para. 26; Barrie Public Utilities v. Canadian
Cable Television Assn., supra, note 7, para. 20 and 86.
32 See: Rizzo Shoes, supra, note 7, para. 21; R. v. Sharpe, supra, note 7, para. 33;
Ludco Enterprises Ltd. v. Canada, supra, note 7, para. 36.
33 See: Barrie Public Utilities v. Canadian Cable Television Assn., supra, note 7,
para. 20; R. v. Clay, supra, note 7, para. 55; Montréal (City) v. 2952-1366 Québec
case resorting to Driedger – is astonishing, namely 724 references34. Beside the expected popularity of the “modern principle” with the statutory adjudicative body that are the federal courts, two pieces of statistics are worth pointing out. First, in absolute numbers and even more so in relative terms based on population, it is by far Brit-ish Columbia which has been the most enthusiastic jurisdiction to resort to Driedger. Second, even if the different legal system in the civil law province of Quebec has not acted as a bar to the use of the quote, again especially in relative terms, it has occurred much less frequently.
The hypothesis here is that the “modern principle” of statutory interpretation has been utilised by the courts in Canada to fulfil a rhetorical function, that is to explain and justify in objective terms the interpretative decision; this role is distinct and separate from its other more obvious function, namely to provide an outline of meth-ods that guide judges in the construction of statutes. It is argued that, in contrast with Driedger who merely intended the latter, the Supreme Court of Canada has attributed and given high impor-tance to the former role of the quote in order to promote the legiti-macy of the judicial role in construing the legislative norms adopted by Parliament, the elected body of Government. For this demon-stration, it is first necessary to have a fresh look at the Driedger’s
34 The breakdown by jurisdiction is as follows: 188 references at the federal
courts, that is 51 at the Federal Court of Appeal and 137 at the Federal Court (Trial Division); 77 references in Alberta, that is 23 at the Court of Appeal and 54 at the Queen’s Bench; 160 references in British Columbia, that is 60 at the Court of Appeal and 100 at the Supreme Court; 22 references in Manitoba, that is 14 at the Court of Appeal and 8 at the Queen’s Bench; 38 references in New Brunswick, that is 26 at the Court of Appeal and 12 at the Queen’s Bench; 31 references in Newfoundland and Labrador, that is 14 at the Supreme Court (Appeal Division) and 17 at the Supreme Court (Trial Division); 8 references in the Northwest Territories, that is 1 at the Court of Appeal and 7 at the Supreme Court; 39 references in Nova Scotia, that is 18 at the Court of Appeal and 21 at the Supreme Court; 62 references in Ontario, that is 21 at the Court of Appeal and 41 at the Superior Court of Justice; 5 references in Prince Edward Island, that is 2 at the Supreme Court (Appeal Division) and 3 at the Supreme Court (Trial Division); 31 references in Quebec, that is 13 at the Court of Appeal and 18 at the Superior Court; 59 references in Saskatchewan, that is 30 at the Court of Appeal and 29 at the Queen’s Bench; 4 references in Yukon, that is 1 at the Court of Appeal and 3 at the Supreme Court; and there has been no reference so far in Nunavut. These data may be found in a schedule to this paper, posted at: [http://www.droit.umontreal.ca/profs/stephane.beaulac/documents.html].
contribution and to see what interpretive methods it has supported at the Supreme Court of Canada (Section I). The discussion then moves to the impact of the “modern principle” on the work of Cana-dian courts, having in mind the dual function of statutory interpre-tation arguments as well as the legitimacy concerns pertaining to the judicial process of construction (Section II).
I.
The “Modern Principle” Reconsidered
and Exposed
Also analysing the “modern principle” of statutory interpreta-tion, Ruth Sullivan made the following apposite remarks about the citation: “Over the years, however, it has come to mean different things to different judges, and little attention has been paid to what is apparently meant to Driedger”35. This is with what the discussion begins, namely an inquiry into the author’s intention as regards the famous passage (Section A); then the survey of the decisions of the Supreme Court of Canada highlights how, in spite of the unfailing references to Driedger, there is a continuing lack of consistency in methods of construing statutes in our highest court (Section B).
A. A Fresh Look at Driedger’s Construction of Statutes
It is in a separate chapter of the Construction of Statutes36, enti-tled “The Modern Principle of Construction”, that Elmer Driedger coins the expression. In fact, it is Chapter 4 of his book, which follows chapters on “The Ordinary Meaning”37, “Departure from the Ordi-nary Meaning”38 and “Construction by Object or Purpose”39. More specifically, the excerpt always cited by courts appears at the end of that seven-page chapter, under the heading “Modern Principle”, in concluding remarks that take less than half of a page. The passage follows a discussion of the three traditional rules of statutory inter-pretation in the common law tradition, namely the “Mischief Rule”40,
35 R. SULLIVAN, loc. cit., note 11, 215. 36 E.A. DRIEDGER, op. cit., note 3, at 81ff. 37 Id., at 1ff.
38 Id., at 47ff. 39 Id., at 73ff. 40 Id., at 81 and 82.
the “Literal Rule”41 and the “Golden Rule”42. Driedger’s analysis includes, inter alia, the three most significant cases from the English common law associated with each of these rules, namely the Heydon’s case43, the Sussex Peerage case44 and the case of Grey v. Person45, respectively.
It is of course very pertinent that the Driedger’s citation intro-ducing the “modern principle” comes after a sort of summary of the three uncontested ways in which common law courts have dealt with statutes. It suggests that a proper interpretation shall take into account the object of the enactment (Mischief Rule), the words with which it is expressed (Literal Rule) and the harmony among its pro-visions and other statutes (Golden Rule); not one of them, or two of them, but all three aspects may be relevant and be taken into account. This statement is surely far from revolutionary though. Put another way, when the passage is placed in its original context of utterance, Driedger seems to have intended no more than a syn-opsis of the three classic rules of legislative interpretation.
Yet the Supreme Court of Canada has transformed Driedger’s thoughts into what appears to be a sweeping proclamation of the one and only approach that must be used in the construction of statutes. But reading Construction of Statutes46 leaves the impres-sion that the “modern principle” is not prescriptive in nature, but merely descriptive of the actual interpretive practice of the time. Evidence of this can be found in the sentence that immediately fol-lows the quote, which reads: “This principle is expressed repeatedly by modern judges, as, for example […]”47; then come references to previous decisions48. Also, proof that the passage in question was not meant to be comprehensive or conclusive in itself can be had
41 Id., at 82-84. 42 Id., at 85 and 86.
43 (1584), 3 Co. Rep. 7a, 76 E.R. 637. 44 (1844), 11 Cl. & R. 85, 8 E.R. 1034. 45 (1857), 6 H.L.C. 61, 10 E.R. 1216. 46 E.A. DRIEDGER, op. cit., note 3. 47 Id., at 87.
48 Id. The two cases are: Westminster Bank Ltd. v. Zang, [1965] A.C. 182, 222 and
R. v. Mojelski (1968), 95 W.W.R. 565, 570. Then Driedger refers to, and also
quotes from, another, older, case, Victoria (City) v. Bishop of Vancouver Island, [1921] A.C. 384, 387.
from the very last sentence with which ends this half-a-page final part of Chapter 4: “The remaining chapters [some 9 of them] of this work seek to explain how an Act is to be so read and how problems that may be encountered on the way are to be solved”49. Thus the “modern principle” is obviously not the whole story.
Its mere restatement function is confirmed by the extended con-text of the work Construction of Statutes50. One example shall suf-fice, namely what the author writes at the beginning of Chapter 6, entitled “The Method of Construction”, under the heading “The Steps”:
The decisions examined thus far indicate that the provisions of an enact-ment relevant to a particular case are to be read in the following way: 1. The Act as a whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedly enacted by the words), the object of the Act (the ends sought to be achieved), and the scheme of the Act (the relation between the individual provisions of the Act).
2. The words of the individual provisions to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the general body of the law, that is the end. 3. If the words are apparently obscure or ambiguous, then a meaning that best accords with the intention of Parliament, the object of the Act and the scheme of the Act, but one that the words are reasonably capa-ble of bearing, is to be given them.
4. If, notwithstanding that the words are clear and unambiguous when read in their grammatical and ordinary sense, there is disharmony within the statute, statutes in pari materia, or the general law, then an unordinary meaning that will produce harmony is to be given the words, if they are reasonably capable of bearing that meaning.
5. If obscurity, ambiguity or disharmony cannot be resolved objectively by reference to the intention of Parliament, the object of the Act or the scheme of the Act, then a meaning that appears to be the most reason-able may be selected.51
49 E.A. DRIEDGER, op. cit., note 3. 50 Id.
Similarly to what he did at the end of Chapter 4, here Driedger elaborates upon the three traditional rules of statutory interpreta-tion at common law. Indeed, in all five points, one can see refer-ences to the Mischief Rule, the Literal Rule and the Golden Rule, as well as suggestions by the author that all three factors, cumula-tively, may be taken into account in the process of statutory inter-pretation.
Beside the acknowledgement that the classic rules are reiter-ated and affirmed, it seems that very little else could be definitively inferred from Driedger’s comments about the “modern principle” and how courts should approach the construction of legislation. It would be difficult, for instance, to identify something that suggests in a meaningful way that the author favours a method that could be associated clearly with “textualism” (also known as “literalism”)52, which focuses on the plain meaning of the legislative text. On the other hand, one would hardly be on firmer grounds to argue that the quote constitutes an endorsement of “intentionalism” (also known as “purposivism”)53, which focuses on the intention of Par-liament as found through the panoply of interpretive arguments. The confusion around what Driedger intended with his “modern principle” and, in particular, whether it can be legitimately used to support either of these methods might explain, at least in part, its popularity with our courts.
B. A Survey of the Supreme Court of Canada Case Law
Looking at the decisions of the highest instance of the land, one is struck by the inconsistency of methods associated with Driedger, starting with the very first time the “modern principle” was invoked in the Stubart case54. The interpretative issue revolved around sec-tion 137 of the Income Tax Act55, which allowed tax reduction based on losses carry-forward, and was resolved in favour of the taxpayer.
52 For a good summary of the “textualist” or “literalist” schools, see: W.N.
ESKRIDGE & P.P. FRICKEY, “Statutory Interpretation as Practical Reasoning”, (1990) 42 Stanford L. Rev. 321, 340ff.
53 For a good summary of the “intentionalist” or “purposivist” schools, see: id.,
325ff.
54 Supra, note 6. 55 R.S.C. 1952, c. 148.
In his discussion on how to approach fiscal legislation, Estey J. wrote the following:
Professor Willis, in his article, supra, accurately forecast the demise of the strict interpretation rule for the construction of taxing statutes. Grad-ually, the role of the tax statute in the community changed, as we have seen, and the application of strict construction to it receded. Courts today apply to this statute the plain meaning rule, but in a substantive sense, so that if a taxpayer is within the spirit of the charge, he may be held liable. See Whiteman and Wheatcroft, supra, at p. 37.
While not directing his observations exclusively to taxing statutes, the learned author of Construction of Statutes (2nd ed. 1983), at p. 87, E.A. Dreidger [sic], put the modern rule succinctly: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoni-ously with the scheme of the Act, the object of the Act, and the intention of Parliament.56
What Estey J. meant by “plain meaning in a substantive sense” is unclear. Something is undisputable, however, namely the indica-tion that strict construcindica-tion has given way to purposive and con-textual interpretation of legislation, be it fiscal or else. In spite of the expression “plain meaning”, this approach is no doubt intentional-ist57. Other references to Driedger in support of a non-textualist read-ing of statutes are found later in Vachon v. Canada (Employment and Immigration Commission)58, Canadian National v. Canada (Human Rights Commission)59, Thomson v. Canada (Deputy Minister of Agri-culture)60 and Symes v. Canada61.
It is in the same area of tax law that we witness a return to the old restrictive plain meaning rule of statutory interpretation, some
56 Stubart, supra, note 6, 578 [emphasis added].
57 This is an opinion shared by R. SULLIVAN, loc. cit., note 11, 217.
58 Supra, note 7, where at issue was section 49 of the Bankruptcy Act, R.S.C. 1970,
c. B-3. The reference to Driedger is at para. 48.
59 Supra, note 7, where the Court had to interpret the Canadian Human Rights Act,
S.C. 1976-77, c. 33. The reference to Driedger is at 1134.
60 Supra, note 7, where at issue was section 52(2) of the Canadian Security
Intel-ligence Service Act, S.C. 1984. The reference to Driedger is at 404, in the
dis-senting opinion of L’Heureux-Dubé J.
61 Supra, note 7, where at issue were provisions of Income Tax Act, supra, note 55,
providing for fiscal deductions for child care expenses. The reference to Driedger is at 744.
ten years later, in Canada v. Antosko62. In deciding whether a trans-action came within the ambit of the tax deduction provided for at section 20(14) of the Income Tax Act63, Iacobucci J. referred to the key passage in the Construction of Statutes64 and to the opinion of Estey J. in Stubart65, but added this:
This principle is determinative of the present dispute. While it is true that the Courts must view discrete sections of the Income Tax Act in light of the other provisions of the Act and of the purpose of the legislation, and that they must analyze a given transaction in the context of economic and commercial reality, such techniques cannot alter the result where the words of the statute are clear and plain and where the legal and practical effect of the transaction is undisputed: [cases omitted].66
It seems that the old plain meaning rule, and with it the strict construction of fiscal legislation, have been brought back from their shallow graves. But were they really born-again? Not really, it would seem, if one considers the decision of the Supreme Court of Canada, the same year, in Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours67. In this case, the following comments accompa-nied Driedger:
In light of this passage there is no longer any doubt that the interpreta-tion of tax legislainterpreta-tion should be subject to the ordinary rules of construc-tion.
[…]
The first consideration should therefore be to determine the purpose of the legislation, whether as a whole or as expressed in a particular pro-vision.
[…]
The teleological approach makes it clear that in tax matters it is no longer possible to reduce the rules of interpretation to presumptions in favour of or against the taxpayer or to well-defined categories known to require a liberal, strict or literal interpretation68.
62 Supra, note 7.
63 S.C. 1970-71-72, c. 63.
64 E.A. DRIEDGER, op. cit., note 3. 65 Supra, note 6.
66 Canada v. Antosko, supra, note 7, 326 and 327. 67 Supra, note 7.
These comments surely do not sound like textualist prose. The oscillation between the two statutory interpretation meth-ods, while references to Driedger remain constant, is confirmed in later decisions. The 1995 case of Friesen v. Canada69, again in tax law, saw Major J. clearly give a textual construction, after making these observations:
In interpreting sections of the Income Tax Act, the correct approach, as set out by Estey J. in Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 537, is to apply the plain meaning rule. … The principle that the plain meaning of the relevant sections of the Income Tax Act is to prevail unless the transaction is a sham has recently been affirmed by this Court [cases omitted]70.
Chronologically, it is interesting to note however that in between these two last cases, the Supreme Court handed down yet another decision in taxation, Schwartz v. Canada71, in which this time an intentionalist method was obviously favoured, with approving ref-erences to Gonthier J. in Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours72, himself using Driedger.
Beside fiscal law, there are many other areas in which contradict-ing statements were made about the applicable interpretive method, all relying however on the same passage of Construction of Statutes73. In the criminal law case of R. v. McIntosh74, for instance, Lamer C.J. most clearly used the old plain meaning rule but yet appeared to endorse the “modern principle”, as expended through the five-step analytical scheme also developed by Driedger75. Another example is Verdun v. Toronto-Dominion Bank76, in which the majority spoke of the Bank Act’s77 plain meaning, yet resorted to Driedger’s famous quote78; but as the minority opinion per L’Heureux-Dubé J. pointed
69 Supra, note 7.
70 Id., para. 10 and 11. Quoted in Alberta (Treasury Branches) v. M.N.R., supra,
note 7, 14.
71 Supra, note 7. 72 Supra, note 7.
73 E.A. DRIEDGER, op. cit., note 3. 74 Supra, note 7, para. 21.
75 Supra, note 51 and accompanying text. 76 Supra, note 7.
77 S.C. 1991, c. 46.
out79, the method that all concerned adopted was encompassing much more that the legislative text. Justice L’Heureux-Dubé her-self, who was the main proponent of intentionalism during her ten-ure at the Supreme Court of Canada, seems to have mistaken in Régie des permis d’alcool80 when she associated Driedger with the plain meaning rule, yet relied on the “modern principle” to describe the applicable method in statutory interpretation.
It is in the unanimous decision of Rizzo Shoes81 that a second breath was given to the method of construction that looks not only at the legislative text, but at all evidence of the intention of Parlia-ment. In discussing how to interpret statutes – here provisions of Ontario Employment Standards Act82 – Iacobucci J. mentioned authors in the discipline83 and opined thus: “Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone”. Then came the usual reference to the second edition of the work. This case was relied upon in many subsequent decisions, along with the “modern principle” and sometimes along with the applicable interpretation acts84, as authority for the proposition that judges should go beyond legislative text and consider the object and context of the statute at issue. These judgments include R. v. Gladue85 (unanimous), Winko v. British Columbia (Forensic
Psychi-79 Id., para. 6.
80 Supra, note 7, para. 152. 81 Supra, note 7.
82 R.S.O. 1980, c. 137.
83 These authors are Ruth SULLIVAN, with the 3rd edition of Driedger on the
Con-struction of Statutes, op. cit., note 10, and with her other book, Statutory Inter-pretation, Concord, Ont., Irwin Law, 1997, as well as Pierre-André CÔTÉ, The Interpretation of Legislation in Canada, 2nd ed., Cowansville, Éditions Yvon
Blais, 1991.
84 In Rizzo Shoes, supra, note 7, para. 22, Iacobucci J. cited section 10 of the
Ontario Interpretation Act, R.S.O. 1980, to further support a broad and liberal construction of the legislation under scrutiny. At the federal level, the relevant provision is section 12 of the Interpretation Act, R.S.C., 1985, c. I-21., which provides: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attain-ment of its objects”.
atric Institute)86 (minority), Best v. Best87 (dissent), Winters v. Legal Services Society88 (dissent), Francis v. Baker89 (unanimous), and R. v. Davis90 (unanimous).
It took no more than a year after Rizzo Shoes91, however, for the Supreme Court of Canada to revert to its internal division about statutory interpretation and, along with it, the contradictory utili-sation of the “modern principle”. Indeed, in the taxation case of 65302 British Colombia Ltd. v. Canada92, the association between intentionalism and Driedger was found only in the minority judg-ment93, while the majority returned to a discourse of textualism after the usual borrowing from the Construction of Statutes94. The swing-back of the pendulum was obvious when Iacobucci J. wrote: “However, this Court has also often been cautious in utilizing tools of statutory interpretation in order to stray from clear and unam-biguous statutory language”95. The split decision, also dealing with fiscal legislation, in Will-Kare Paving & Contracting Ltd. v. Canada96 is another case on point. While, on the one hand, the dissent resorted to Driedger as applied in Rizzo Shoes97 and stressed the object and context of the enactment98, on the other hand, the major-ity echoed the plain meaning rule and referred to Driedger and the contradictory tax case law, holding that: “The primary rule of stat-utory interpretation is to ascertain the intention of Parliament. Where the meaning of the words used is plain and no ambiguity arises from context, then the words offer the best indicator of Par-liament’s intent”99.
86 Supra, note 7, para. 123. 87 Supra, note 7, para. 139. 88 Supra, note 7, para. 47. 89 Supra, note 7, para. 34. 90 Supra, note 7, para. 42. 91 Supra, note 7.
92 Supra, note 7.
93 Id., para. 5., per Bastarache J. 94 E.A. DRIEDGER, op. cit., note 3.
95 65302 British Colombia Ltd. v. Canada, supra, note 7, para. 50. 96 Supra, note 7.
97 Supra, note 7.
98 Will-Kare Paving & Contracting Ltd. v. Canada, supra, note 7, para. 32. 99 Id., para. 54.
In the area of criminal law, the “modern principle” returned to being utilised as the basis for a broad and liberal interpretation that includes the text, but also the object and context of the statute, in the unanimous decision of R. v. Araujo100. Again in criminal law, same story in R. v. Sharpe101: “[Driedger] recognizes that statutory interpretation cannot be founded on the wording of the legislation alone102”. Such a non-textualist take on the “modern principle” was also favoured in R. v. Ulybel Enterprises Ltd.103 (fisheries), Ludco Enterprises Ltd. v. Canada104 (taxation), Chieu v. Canada (Minister of Citizenship and Immigration)105 (immigration) and Sarvanis v. Canada106 (Crown liability).
The next significant judgment was Bell ExpressVu107, in which a unanimous Supreme Court of Canada gave yet again confusing signals. First, Iacobucci J. did the technical routine of referring to Driedger and to the federal Interpretation Act108, as well as attempt-ing a list of the case law that resorted to the “modern principle”109, all pointing towards the intentionalist method. But then came the discussion on ambiguity and how some interpretive arguments may be employed only if there is such problems110, language that bor-rows directly from the plain meaning rule and the textualist method. In the end, however, this decision is one of those that went further than the mere legislative text. Another interesting case is R. v. Jarvis111, which relied on Driedger but reformulated his “modern principle”, obviously in terms focussing equally on the text, object and context of the enactment112.
100 Supra, note 7, para. 26. 101 Supra, note 7.
102 Id., para. 33.
103 Supra, note 7, para. 28. 104 Supra, note 7, para. 37. 105 Supra, note 7, para. 27. 106 Supra, note 7, para. 24. 107 Supra, note 7.
108 Supra, note 84.
109 Bell ExpressVu, supra, note 7, para. 26. 110 Id., para. 28-30.
111 Supra, note 7, para. 77.
As soon at the ink of that nice judicial pronouncement was dry came another hard case that saw the Supreme Court of Canada split on the construction of statutory language found in section 2 of the Patent Act113 in the so-called “mouse case”, that is Harvard College114. This time, however, the majority and the dissent did not disagree in substance on the interpretive method advocated in the Construction of Statutes115; both opinions stayed away from plain meaning argu-ments and took into account a variety of interpretive eleargu-ments116. The justices just failed to reach the same conclusion at the end of the day. A similar situation is found in Barrie Public Utilities v. Canadian Cable Television Assn.117, where both the majority and the dissent gave the same spin to the “modern principle”118. The Driedger-intentionalist association also took place in Markevich v. Canada119, C.U.P.E. v. Ontario (Minister of Labour)120, Parry Sound (District) S.S.A.B. v. O.P.S.E.U., Local 324121, United Taxi Drivers’ Fel-lowship of Southern Alberta v. Calgary (City)122, Alberta Union of Pro-vincial Employees v. Lethbridge Community College123, Mosanto Canada Inc. v. Ontario (Superintendent of Financial Services)124, R. v. Clark125 and Canada (House of Commons) v. Vaid126.
113 R.S.C. 1985, c. P-4.
114 Supra, note 7. This case is further discussed in Section II.B.2, infra, notes
181-188 and accompanying text.
115 E.A. DRIEDGER, op. cit., note 3.
116 The majority in Harvard College, supra, note 7, referred to Driedger and stated
the applicable method of statutory interpretation at para. 154, while the dissent did the same at para. 11.
117 Supra, note 7.
118 The majority referred to Driedger’s citation in stating its approach to
interpret-ing s. 43(5) of the Telecommunications Act, S.C. 1993, c. 38. (see id., para. 20); Bastarache J., in dissent, resorted to the key passage in discussing the proper deference to give to the administrative board decision, an unprecedented use of the “modern principle” (see id., para. 86).
119 Supra, note 7, para. 12. 120 Supra, note 7, para. 106. 121 Supra, note 7, para. 41. 122 Supra, note 7, para. 8. 123 Supra, note 7, para. 25. 124 Supra, note 7, para. 19. 125 Supra, note 7, para. 43. 126 Supra, note 7, para. 80.
More recently, it is in constitutional interpretation and in consti-tutional challenges under the Charter127 that the “modern principle” was translated into a broad and liberal method to read statutes, one which encompasses text, object and context. It was the case in R. v. Blais128 and Application under s. 83.28 of the Criminal Code (Re)129. In this area as in all the others, however, the spectres of the plain meaning rule and, with it, the preliminary requirement of ambigu-ity that conditions the use of all available interpretative arguments, are never far away. In R. v. Clay130, for instance, the majority reverted to the spirit of textualim when, with Driedger’s citation, Iacobucci J. referred to his statement in Bell ExpressVu131 and categorically held that: “Here there is no ambiguity”132. The process of interpreting the legislative regime of the Narcotic Control Act133 was then cut short, examining only the language used in the relevant provisions. Just last December, the lack of legislative ambiguity was the justi-fication to reject Charter134 values as an interpretative tool in Char-lebois v. Saint John (City)135, dealing with the quasi-constitutional enactment that is New Brunswick Official Languages Act136. Driedger was invoked,137 but so was Iacobucci J. in Bell ExpressVu138, which was relied upon by Charron J. for her comment in fine: “Absent any remaining ambiguity, Charter values have no role to play”139.
The whole struggle between plain meaning and intentionalism, with or without the preliminary requirement of ambiguity, is still very much ongoing, as the latest decision of the Supreme Court of Canada on intellectual property testifies. In Bristol-Myers Squibb Co.
127 Supra, note 16. 128 Supra, note 7, para. 16. 129 Supra, note 7, para. 34. 130 Supra, note 7.
131 Supra, note 7.
132 R. v. Clay, supra, note 7, para. 56. 133 R.S.C. 1985, c. N-1.
134 Supra, note 16.
135 Supra, note 7, in the reasons for the majority of 5 (4 justices dissenting) per
Charron J.
136 Supra, note 20.
137 Charlebois v. Saint John (City), supra, note 7, para. 10. 138 Supra, note 7, para. 62.
v. Canada (Attorney General)140, Binnie J. for the majority construed the legislation having regard to all the interpretative elements sug-gested by Driedger. On the other hand, although wrapping himself with the “modern principle” cloth and invoking context and purpose, the dissent per Bastarache J. warned that: “Contextual interpreta-tion does not justify departures from ordinary rules of statutory interpretation; in particular, reading in words cannot be justified in the absence of a demonstrable ambiguity”141. If it is one, the con-solation seems to reside in the apparent common willingness, always, to adopt a progressive method of construction, which Driedger’s would epitomise.
This tango is certainly bound to continue unabated, however, especially given that the people on our highest court are not even coherent in the interpretative method they individually favour. Wit-ness how just months after the later case the same Binnie J., this time dissenting in Montréal (City) v. 2952-1366 Québec Inc.142, was rebuked by the majority: “Although he claims to follow the modern approach to the interpretation of legislative provisions, Binnie J. actually relies on the literal interpretation”143. Which he did indeed, unashamedly speaking simultaneously of “modern principle” and legislative ambiguity, holding solemnly and in all seriousness that “the legislators intended what they said”144. A few weeks yet and Binnie J. reverted back to a broad and liberal method of construc-tion in Merk v. Internaconstruc-tional Associaconstruc-tion of Bridge, Structural, Orna-mental and Reinforcing Iron Workers, Local 771145, where for the majority he recalled Driedger and, without any allusion to ambigu-ity, considered fully the text, context and purpose of the labour leg-islation at issue.
II. The Legacy of the “Modern Principle” in Canada
The continuing want of uniformity in methods does not affect in any way a basic undeniable observation, namely that the “modern
140 Supra, note 7. 141 Id., para. 103. 142 Id., para. 13. 143 Id., para. 13. 144 Id., para. 115. 145 Supra, note 7.
principle” is THE approach to statutory interpretation adopted at the Supreme Court of Canada and, following its lead, in the other superior courts of this country. This being so, the time has certainly come to assess the impact Driedger really has had on the work of our highest court. Sure, words such as “modern”, “contextual” or “purposive” suggest sophistication. But is this terminology more than a clever repackaging of traditional ways of doing things?
The answer to this question is made difficult because the prin-cipal functions that Canadian courts discharge on a daily basis are fundamentally ambiguous. Driedger’s principle, as it appears in the decisions of the Supreme Court of Canada, may be viewed as the expression of the method that is, in fact, followed by the judiciary in reaching a decision on a question of statutory interpretation. Or it may be viewed as providing courts with a framework for the justi-fication of an interpretive decision. Or, again, it may be viewed both as an indication of a recommended method for reaching a decision and as providing a framework for the judicial justification of that decision.
Accordingly, the main functions courts fulfill when interpreting legislation must be examined (Section A), before assessing the impact of Driedger’s “modern principle” on the methodology of con-struction (Section B).
A. The Functions of the “Modern Principle”
When a court is faced with a question of statutory construction, it will normally come across the principles that have been developed over centuries concerning the goals of interpretation, the factors that are to be considered in interpreting enactments and the vari-ous presumptions which may influence the decision and its justifi-cation. The task of the judiciary can be analysed as consisting, first, in choosing between opposite meanings, thus selecting the one that represents the “true meaning” of an enactment, or its “best” or “pref-erable meaning”. This decision having been made, a second process then begins, namely the process of justifying the interpretation in a written opinion146. Principles of statutory interpretation play a role
146 On this distinction, see: Robert S. SUMMERS, “On Method and Methodology”,
in D. Neil MacCORMICK and Robert S. SUMMERS (eds.), Interpreting Statutes:
at both the meaning-selection phase and the meaning-justification phase of the process147.
At the meaning-selection stage, the judge hears submissions from the parties, submissions that are in large part based on prin-ciples of interpretation. Those prinprin-ciples determine the goal or goals of the interpretive process as well as the legitimate means to pursue these goals, i.e. what factors should be considered and, in cases of doubt, what solutions are presumptively preferable. Having in mind these conflicting submissions – referring to legislative intent, ordi-nary meaning, context, purpose, history, consequences, authorities, presumptions, and so on – the judge then decides which meaning should be favoured.
Once that decision is made, an entirely different process begins, that of justifying the interpretation, generally in a written opinion. This stage is anything but a simple narration of the mental process by which the judge arrived at his or her interpretive decision. The goal is not to describe but to justify. Whereas the meaning-selection stage ends with a decision as to the appropriate meaning, the meaning-justification stage starts with that interpretation and aims at dem-onstrating that it is preferable to any other. And while at the meaning-selection stage, the judge considers all the valid reasons that may be relevant to the choice at hand, at the meaning-justification stage, the practice in Canadian courts is generally to highlight only those reasons which support the judge’s choice of meaning. The reasons that run against this choice are either not mentioned or summarily discounted. It is noteworthy, finally, that the meaning-selection stage involves indeed a private intellectual process, one taking place in the secrecy of the judge’s mind, whereas the meaning-justification stage involves a public intellectual process, which constitutes an “authoritative public justification of interpretational decisions”148.
147 On the distinction between the heuristic and the rhetorical functions of the
principles of statutory interpretation, see: Pierre-André CÔTÉ, The
Interpreta-tion of LegislaInterpreta-tion in Canada, 3rd ed., Toronto, Carswell, 2000, at 37-41.
1. Driedger Meant Meaning-Selection or Meaning-Justification?
When a judge uses the word “interpretation” or “construction”, it is often unclear whether he or she is referring to the process of assigning meaning to a legislative text or to the subsequent activity of justifying that meaning in a written opinion. Although “interpre-tation” and “construction” suggest the ascertainment of a legal rule taking the enactment as a starting point, they are sometimes used to refer to the justification of the selected meaning.
A good illustration of this dual utilisation of “interpretation” or “construction” is found in Law Society of Upper Canada v. Ska-pinker149. This is the first decision by the Supreme Court of Canada dealing with the interpretation of the Charter150. In the course of arguments, the parties had referred the Court to historical material retracing, in particular, the parliamentary discussions surrounding the adoption of section 6 of the Charter and those documents were accepted. Presumably, the Court had considered them in arriving at its decision, but it preferred not to make use of this extrinsic evi-dence in justifying its conclusion. This is how Estey J. explained the Court’s position:
The Court on this appeal received this historical material. I have not found it necessary to take recourse to it in construing s. 6, and therefore, I do not wish to be taken in this appeal as determining, one way or the other, the propriety in the constitutional interpretive process of the admission of such material to the record.
It seems clear from the context that the word “construing” is used here to refer to the process of justification of an interpretation in a written opinion rather than to the process of determining the true or best meaning of an enactment.
Going back to Driedger’s “modern principle”, is it to be under-stood as indicating the proper approach to the determination of the true meaning of legislative texts or is it addressing the issue of the appropriate way to justify conclusions on matters of statutory inter-pretation? Is it a narrative directed at all interpreters of statutes, including the courts, containing the preferred approach to interpret
149 [1984] 1 S.C.R. 357. 150 Supra, note 16.
acts or is it a narrative speaking to a much smaller audience, made up only of the members of the judiciary, containing the preferred way of justifying an interpretive decision?
If one considers Driedger’s own expression of the “modern prin-ciple” examined in Section I.A, it is absolutely clear that it was meant to deal with the ascertainment of meaning, not justification. It was published in a legal manual and echoed the author’s lectures at the University of Ottawa. In no way is it addressed to judges or does it deal with the drafting of interpretive decisions. Moreover, sug-gesting that the three traditional “Rules” (Mischief Rule, Literal Rule, Golden Rule) were not in themselves real rules, but were simply three interpretative tools always available in ascertaining the meaning of enactments was not a new proposition when The Construction of Statutes was published in 1974, even less so at the time of the sec-ond edition in 1983. As early as 1938, John Willis can be credited of the idea, which is found at the very first page of his classic Statute Interpretation in a Nutshell, an article clearly dealing with interpre-tation in the usual sense, i.e. the ascertainment of meaning in an enactment151.
2. Using Driedger More for Meaning-Selection or Meaning-Justification?
While the function of the “modern principle” was unambiguous under Driedger’s pen, the same can hardly be said since it has been borrowed by the Supreme Court of Canada. The survey of the case law in Section I.B, we submit, reasonably supports the argument that Driedger’s quote is presented by the Court as a principle for meaning-selection while it is utilised by the Court as a framework for meaning-justification. The Court is thus addressing simultane-ously, on the one hand, all interpreters by advocating a general
151 John WILLIS, “Statute Interpretation in a Nutshell”, (1938) 16 Can. Bar Rev. 1,
at 1: “Look closer and you will see that there is not one single approach, but three; (i) ‘the literal rule’, (ii) ‘the golden rule’, (iii) ‘the mischief rule’. Any one of theses approaches may be selected by your court : which it does decide to select may, in a close case, be the determining element in the decision. Your guess should therefore be based on an application of all three approaches: you should not be misled by Craies or Maxwell into thinking there is only one to consider” [footnotes omitted]. See also, to the same effect: THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION, Report on the Interpretation of Statutes, London, H.M.S.O., 1969, at 17.
approach to the actual finding of legislative meaning and, on the other hand, the members of the judiciary by indicating the pre-ferred way of drafting judgments dealing with statutory interpreta-tion.
Given that the ordinary sense of “interpretation” or “construc-tion” refers to the process of ascertaining the meaning of a text, it is reasonable to think that the function the Supreme Court of Canada wants to give to the “modern principle” is to indicate what is, in its view, the “preferred”, “established”, “proper”, “prevailing”, “appro-priate” approach to meaning-selection152. But often, Driedger’s quote also seems to provide the Court with a standardized outline or frame-work for drafting judgments involving questions statutory interpre-tation. The fact of the matter is that expressions taken straight from the excerpt at hand – such as “grammatical and ordinary sense”, “context”, “scheme of the Act” and “object of the Act” – appear in a good number of opinions as headings that structure the Court’s justification of the meaning it has selected153.
What speaks loud and clear about this point is that the Supreme Court of Canada, on more than one occasion, has felt it necessary to mention that one needs not consider slavishly all the elements suggested in Driedger’s formulation of the “modern principle”. In Chieu v. Canada (Minister of Citizenship and Immigration), for instance, Iacobucci J. writes:
While the interpretive factors enumerated by Driedger need not be applied in a formulaic fashion, they provide a useful framework through which to approach this appeal, given that the sole issue is one of statu-tory interpretation. However, I note that these interpretive factors are
152 For example, see the numerous “professions of faith” by the Supreme Court of
Canada highlighted above, supra, notes 27-33 and accompanying text.
153 One of the most striking illustrations is Monsanto Canada Inc. v. Ontario
(Super-intendent of Financial Services), supra, note 7, where Deschamps J., after citing
Driedger, writes, at para. 19: “I will examine each of these factors in turn, first with the background context”. The opinion then contains the following head-ings: “A. Historical Context”; “B. Grammatical and Ordinary Sense”; “C. Scheme of the Act”; and “D. Object of the Act”. Similarly, see: Merk v. International
Asso-ciation of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, supra, note 7, para. 18, and the headings that follow, as well as R. v. C.D., supra, note 7, para. 27, and the headings that follow.
closely related and interdependent. They therefore need not be can-vassed separately in every case.154
It is reasonable to argue that this last remark concerns the draft-ing of judgments, not interpretation proper. As a caveat, it is rather useless if it is directed at interpreters of legislation in general, but it becomes crucial when it is addressed to judges, telling them they need not refer in all cases to each and every element enumerated in the “modern principle”. There are at least three good reasons for this. First, following too closely Driedger’s formulation in judgment drafting would lead to repetitious opinions. For example, once a judge has examined the ordinary meaning, the object of the Act, its scheme and its context, there is not much use for a further discus-sion of the intention of Parliament. Second, reference to a given ele-ment, say the object of the act, may be of some help in a majority of cases, but not in all cases. Finally, and most importantly, from a rhetorical perspective, it may not be advisable to canvas the “gram-matical and ordinary sense” of a word, for example, if the court has decided that this element should give way to other interpretive arguments155.
3. Legitimizing Interpretation with the “Modern Principle”
If the “modern principle” prescribes a general approach to ques-tions of statutory interpretation while at the same time providing the courts with a framework for the justification of interpretive deci-sions, one might ask which one of these two functions is the dom-inant one. In our view, Driedger’s quote is overwhelmingly used for the purpose of justifying interpretive decisions, which in turn is done in an attempt to legitimize the courts role in that regard. Its meaning-selection function is but a secondary one.
154 Chieu v. Canada (Minister of Citizenship and Immigration), supra, note 7, para. 28.
To the same effect, see: Bell ExpressVu, supra, note 7, para. 31; Alberta Union of
Provincial Employees v. Lethbridge Community College, supra, note 7, para. 27; Marche v. Halifax Insurance Co., supra, note 7, para. 55; Bristol-Myers Squibb Co. v. Canada (Attorney General), supra, note 7, para. 96; H.L. v. Canada (Attor-ney General), supra, note 7, para. 187.
155 In cases where the Court feels that the ordinary meaning should not be
deter-minative, either the “modern principle” is not mentioned at all (see: R. v. Money, [1999] 1 S.C.R. 652) or the “grammatical and ordinary sense” is not discussed (see: Rizzo Shoes, supra, note 7).
One piece of evidence is how the Supreme Court of Canada has continued to refer to Driedger’s second edition of The Construction of Statutes even though professor Ruth Sullivan, in the third edition of the book, expressed the contemporary methodology in a way which reflects the current interpretive practice much better than the ide-alized conception embodied in the original version of the “modern principle,” favoured by the Court156. Why does it prefer a less real-istic description of how legislative meaning is and should be deter-mined157? The answer seems to be that, even though the first formulation of the “modern principle” is inferior to Ruth Sullivan’s reformulation, as a description of the actual interpretive practice of Canadian legal actors (especially judges), it is considered superior by the Supreme Court of Canada because it is more convenient in terms of justification and, more importantly, in terms of legitimiza-tion of the judicial interpretive decisions. Having a choice between candour and legitimacy, the Court has clearly opted for the lat-ter158.
Unsurprisingly, the Court’s conception of the proper role of a judge in construing statutes reflects the traditional view, namely that the one and only objective of legislative interpretation is the ascertainment of the legislative will. Driedger’s “modern principle”, accordingly, would rest on a theory of construction based on the original intention of Parliament. Whereas in the realm of the com-mon law (i.e. judge-made-law), courts see themselves as
responsi-156 R. SULLIVAN, op. cit., note 10, at 131 and 132:
There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of legislation, the consequences of proposed interpretations, the pre-sumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.
157 Professor Sullivan’s 3rd edition of The Construction of Statutes has been cited
but a few times, only in dissenting opinions and mostly by L’Heureux-Dubé J. See supra, note 9.
158 On the possible conflict between legitimacy and candour in statutory
interpre-tation, see: N.S. ZEPPOS, “Judicial Candor and Statutory Interpretation”, 78
